COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67253 VELMA PERKINS, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION THE HALEX COMPANY, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 13, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 188211 JUDGMENT : Appeal dismissed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANT-APPELLEE THE HALEX COMPANY: Daniel T. Todt, Esq. Martin S. List, Esq. Rebecca L. Todt, Esq. Jon M. Dileno, Esq. Daniel T. Todt & Associates David Somrak, Esq. 20th Fl. - The Standard Bldg. Duvin, Cahn & Barnard 1370 Ontario Street Erieview Tower, 20th Floor Cleveland, Ohio 44113-1701 1301 East Ninth Street Cleveland, Ohio 44114 FOR APPELLEE, RICHARD S. KAUFMAN, M.D.: Steven J. Hupp, Esq. Jacobson, Maynanrd, Tuschman and Kalur Co., L.P.A. North Point Tower, 16th Floor 1001 Lakeside Avenue Cleveland, Ohio 44114 -2- -2- HARPER, J.: Plaintiff-appellant, Velma Perkins, commenced her employment with defendant-appellee, the Halex Company ("Halex"), a division of Scott Fetzer, in March 1973. She bid for and received a full-time position in the classification of Degate, Trim, Sand, Inspect and Pack in December 1991. Not only was appellant the first black female in this department, she was the first female. According to appellant, she thereafter experienced disparate and discriminatory treatment on behalf of Halex. Halex terminated appellant on April 13, 1989 for violating a five-pound lifting medical restriction. Defendant-appellee, Richard S. Kaufman, M.D., placed the restriction on appellant when she continued to experience difficulty with her right wrist which she injured while working on a Bridgeport Milling Machine on January 13, 1989. Appellant maintained that she was unaware of the weight restriction. Therefore, when Halex questioned her as to her personal life, specifically as to whether she was an active bowler, she denied the activity because she believed her employer had no right to delve into her personal life. Halex terminated appellant because it believed that she was perpetrating a fraud with regard to her disability. Appellant filed a complaint in the Court of Common Pleas of Cuyahoga County on April 13, 1990 against Halex and Dr. Kaufman. She set forth therein that Halex's actions denied her equal employment opportunities in violation of Title VII of the Civil -3- Rights Act of 1964, Section 2000, Title 42, U.S. Code; the Equal Employment Opportunity Act of 1972, Section 2000e, Title 42, U.S. Code; and R.C. 4101.07, 4112.01 et. seq. Regarding Dr. Kaufman, appellant asserted that he committed medical malpractice; violated the physician-patient privilege; and intentionally or negligently inflicted emotional distress on her. Appellant also asserted a claim against both of the defendants for the intentional interference with her contractual rights. Dr. Kaufman filed a motion for summary judgment on April 3, 1 1991. The trial court granted the motion on November 6, 1991, but then vacated the judgment in light of appellant's filing of a bankruptcy petition prior to November 6, 1991. A stay was thus in effect pending the disposition of the bankruptcy matter. The stay was lifted in February 1993. The trial court ordered appellant to amend her complaint joining the Trustee in Bankruptcy as a plaintiff. Appellant filed her amended complaint on February 16, 1993; she reiterated the allegations and claims for relief contained in her original April 13, 1990 complaint. Halex and Dr. Kaufman thereafter filed separate motions for summary judgment in March 1993. Appellant filed a brief in opposition as well as a motion for summary judgment. The trial court, on April 5, 1994, granted Halex's and Dr. Kaufman's motions for summary judgment, and denied appellant's 1 The action was removed to the United States District Court in the interim by defendants on May 30, 1990. The district court remanded it to the trial court on October 30, 1990. -4- motion. Appellant responded by filing a Motion to Amend or in the Alternative, for Findings of Fact and Conclusions of Law on April 2 21, 1994. The trial court denied the motion on May 4, 1994. Appellant filed a notice of appeal on May 9, 1994 from the trial court's April 5, 1994 grants of summary judgment. She assigns error as follows: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT HALEX WHERE MS. PERKINS HAS DEMONSTRATED SPECIFIC FACTS SHOWING THAT DEFENDANT FABRICATED THE FIVE POUND WEIGHT RESTRICTION AND H A S THEREFORE WRONGFULLY DISCHARGED HER FOR CONDUCT UNRELATED TO DEFENDANT'S BUSINESS II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT HALEX WHERE HALEX MISSTATED THE LAW AS TO THE EXISTENCE OF AN ACTIONABLE CLAIM AGAINST IT FOR INTENTIONAL INFLICTION AND/OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT KAUFMAN WHERE IT WAS GRANTED BECAUSE EXPERT TESTIMONY WAS NOT PROVIDED TO PROVE THAT DR. KAUFMAN SHOULD HAVE TOLD HIS PATIENT ABOUT A MEDICAL RESTRICTION HE WAS PLACING HER UNDER, DIRECTLY CAUSING HER TERMINATION IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT KAUFMAN WHERE THE RELEASE SIGNED BY PERKINS DID NOT AUTHORIZE KAUFMAN TO RELEASE A NEW CARE RESTRICTION, CREATED AT HER EMPLOYER'S REQUEST, NOT HERS, AND THEN RELEASED BY KAUFMAN TO ONLY HALEX WITHOUT EVER INFORMING PERKINS OF IT Dr. Kaufman raises a preliminary matter concerning the timeliness of appellant's appeal. Simply stated, Dr. Kaufman asserts that appellant failed to timely file a notice of appeal from the trial court's April 5, 1994 grants of summary judgment 2 Appellant filed a notice of appeal from this denial on June 9, 1994, App. No. 67411. The appeal was dismissed on June 20, 1994 as untimely under App.R. 4(A). -5- when she filed said notice on May 9, 1994. We agree with Dr. Kaufman and dismiss this appeal for lack of jurisdiction. App.R. 4(A) provides that a notice of appeal must be filed within thirty days of the date of entry of judgment or order appealed from: In a civil case the notice of appeal *** shall be filed with the clerk of the trial court within thirty days of the date of the entry of the judgment or order appealed from. If service of the notice of judgment and its entry is not made on a party within the three-day period provided in Civ.R. 58(B), then that party shall file the notice of appeal within thirty days of the date of service. *** Civ.R. 58(B) requires the clerk to serve notice of the entry upon all parties, not in default, in any manner provided in Civ.R. 5, including service by ordinary mail, within three days of the entry of any final judgment or order. App.R. 4(A) grants a party thirty days from the date of service to file a notice of appeal. The clerk is required to make a notation in the appearance docket indicating issuance of the notice to the parties. Civ.R. 58(B). Notice is deemed served and the time for filing the notice of appeal commences to run when the clerk serves the notice of the entry and enters the appropriate notation in the appearance docket. Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80; DeFini v. Broadview Heights (1991), 76 Ohio App.3d 209; ABC Accounting Services v. Pittman (Oct. 28, 1993), Cuyahoga App. No. 63895, unreported. There is a rebuttable presumption of proper service when there is compliance with the civil rules of service. Grant v. Ivy (1980), 69 Ohio App.2d 40; ABC Accounting Services. -6- In the present case, the trial court granted summary judgment in favor of Halex and Dr. Kaufman. The judgments were journalized on April 5, 1994. The appearance docket clearly establishes that the clerk's office issued the notices in accordance with Civ.R. 58(B) on the same date. App.R. 4(A) mandated that appellant file her notice of appeal within thirty days of April 5, 1994, i.e., by May 5, 1994. Appellant not having done so, the filing of the May 9, 1994 notice of appeal was untimely. Appellant counters that she timely filed the notice of appeal because the trial court denied her motion for findings of fact and conclusions of law on May 4, 1994. She properly submits that App.R. 4(A) recognizes that motions for findings of fact and conclusions of law toll the time period in which to file a notice of appeal. The rules of appellate procedure, however, severely restricts a court's ability to toll the time period for the filing of a notice of appeal. App.R. 4(A) contains the circumstances which allow the tolling of the time period, reading as follows in relevant part: *** The running of the time for filing a notice of appeal is suspended as to all parties by a timely motion filed in the trial court by any party pursuant to the Civil Rules hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of the last of any of the following orders made upon a timely motion under such rules granting or denying a motion *** (4) for findings of fact and conclusions of law under Civ.R. 52. *** (Emphasis added.) -7- The rule allows the suspension of the filing of a notice of appeal time by a motion for "findings of fact and conclusions of law under Civ.R. 52." (Emphasis added.) The motion, therefore, must be authorized by Civ.R. 52, Henderson v. Brost Foundry Co. (1991), 74 Ohio App.3d 79, 80, which states in relevant part: When questions of fact are tried by the court without a jury, judgment may be general for the prevailing parties unless one of the parties requests otherwise ***, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law. *** Findings of fact and conclusions of law required by this rule and by Rule 41(B)(2) are unnecessary upon all other motions including those pursuant to *** Rule 56. *** (Emphasis added.) Findings of fact and conclusions of law under Civ.R. 52, and summary judgment pursuant to Civ.R. 56, are incompatible, Ogle v. Kelly (1993), 90 Ohio App.3d 392, because the trial court determines there are no issues of material fact for litigation when it grants a summary judgment. See, Civ.R. 56(C); Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d 64; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. When a court does not assume the role of a factfinder it has no duty to issue findings of fact and conclusions of law. Compare, State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40 (findings of fact and conclusions of law not required when a motion to dismiss is granted because the trial court does not assume the role of a factfinder). -8- The trial court herein did not assume the role of a factfinder since it ruled on Halex's and Dr. Kaufman's motions for summary judgment. Civ.R. 52 expressly states that it applies "[w]hen questions of fact are tried," and does not apply to Civ.R. 56 motions. Appellant could not, therefore, file a motion for findings of fact and conclusions of law under Civ.R. 52. Compare, L.A. & D. v. Bd. of Commrs. (1981), 67 Ohio St.2d 384 (rulings on motions for summary judgment are final appealable orders, and a motion for new trial does not toll the time limits imposed in App.R. 4(A) because the trial court never conducted a trial). The motion, therefore, did not toll the time in which to file a notice of appeal. Appellant's appeal is accordingly dismissed. -9- It is ordered that appellees recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH NAHRA, J., AND TERRENCE O'DONNELL, J., CONCUR. PRESIDING JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .